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TMI Blog2014 (1) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... of income declaring total income at Rs. nil after claiming deduction u/s 80IB(10) of the act to the tune of Rs. 10,47,808/-. An order u/s 143(3) of the Act was passed by AO determining total income at Rs. 12,51,458/-. Aggrieved by this order , the assessee preferred an appeal before the Ld. CIT(A). Ld. CIT(A) partly allowed the appeal of the assessee. Hence the department filed an appeal before Hon'ble ITAT. Hon'ble ITAT vide its order dated 30th September 2009 set aside the matter and restored back to the file of AO with a direction to find out if control over the project and has developed the land at his own cost and risks. After verifying this, the AO should allow the deduction to the assessee u/s 80IB(10) of the Act. 4. During the subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee. Before Ld. CIT(A) assessee placed reliance on the following written submissions:- "3.1 In this connection, your appellant submits that your appellant is a developer, developing the land and making construction on the said land. During the year under assessment, your appellant has continued the construction work of Sai Dham. The said scheme has been carried out on the land bearing S.No.267, 269, 270 and 274. The said land belongs to Shri Jasbhai Motibhai Patel and Chunibhai Nanjibhai of Harni, Baroda. The said land was acquired by your assessee for development vide sale cum = development agreement dated 15.05.2000. The area of the said land is 23,775 sq.mt.. Your assessee has taken actual possession of the said land from the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ees, etc. in respect of execution of this documents and registration thereof are to be born by developer or by its members. (ix) To put up the board at project site. As per the clause -2 of the agreement, the price of the land has already been fixed between the landlord and developers. And the landlord is entitled to the cost of land only. He is not entitled to any profit earned by the developer by execution of the said scheme. During the course of original assessment proceedings, your appellant has already furnished copy of development agreement. On going through the said development agreement, it will be seen that your appellant entered into development agreement with Shri Jashbhai Motibhai Patel and Chinubhai Nagjibhai of Harni, Barod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... title in the development so carried out accept to the extent he has to receive the consideration. (v) The developer is entitled to publish the project, print broachers etc. and can sale project at its own right. (vi) The dominant control and right over the land is of the developer, so that it does not envisage that the developer will be working as a contractor or agent on behalf of the owner. In your appellant's case, your appellant furnishes herewith copy of development agreement duly registered. On going through the said development agreement, it will be seen that your appellant entered into development agreement with Shri Jashbhai bhai Patel and Chinubhai Nagjibhai of Harni, Baroda for the development of the land bearing S.No. 267,269 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act. There is no such mention in the Act that entire construction of the land should be paid to the land lord. Thus, going through the development agreement as well as ITAT's order, it is seen that your appellant has fulfilled all the criteria mentioned in the order of Shakti Corporation and accordingly your appellant Is entitled to the deduction under section of the 80IB(10) of the I.T.Act,1961. In view of the above submission, the AR of the appellant submitted that the claim of appellant under section 80IB(10) of the Act be allowed". 6. After taking into consideration this submission of the assessee, Ld. CIT(A) was of the view that assessee was entitled for deduction u/s 80IB(10) of the Act. 7. Aggrieved by this order of Ld. CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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